POLITICS OF DEFECTION
While the law was framed in 1985 with the specific intent of combating the 'evil' of political defections, people have over the years become mere marginalised spectators of political shenanigans
In 1967, after the Haryana Assembly poll, Congress MLA performed a miracle by jumping parties thrice in a fortnight. At first, he shifted from Congress to Janata Dal, and within a day, he joined Congress again. This unprecedented politics of defection by Ram was not very common back then, thereby, raised the eyebrows of the politicians.
The defection politics of Ram not only helped him to be on the side of the ruling regime but also led to the inception of the phrase "Aya Ram, Gaya Ram" which summarised the politics of defection in India. People like Gaya Ram may continue to enjoy power but due to such politics, democracy itself takes a step back.
Morality halted, democracy was in danger and political chaos prevailed in post-poll scenarios across the state and national politics. Post that incident, Rajiv Gandhi-led Congress government implemented the anti-defection law in 1985.
It has been 73 years since the first incident of defection. Despite the anti-defection law, the phenomenon still prevails – the most recent incidents are of the fall of Congress-JDS led Karnataka government, defection in Goa and also the defection of TDP MPs in Rajaya Sabha. These incidents have raised questions on the validity of the anti-defection law and its application as it has not been able to combat constitutional crises across various states and even in the upper house of the Parliament.
Passed as the 52nd Amendment Act, the anti-defection law was added as part of the 10th Schedule of the Constitution. The objective of the law was noted as, " The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection bill."
What is Anti-Defection Law?
In case, a member of a legislature voluntarily gives up the membership of his/her party (overtly, or even by merely abstaining from voting), he/she will be disqualified from becoming a member of that house until she is re-elected afresh.
Secondly, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.
Despite this law, defection in Indian politics continued, therefore, the law was amended again. The amendment provided that a disqualified member could not become a minister unless first re-elected, thus dissuading defections for the sole purpose of immediate ministerial berth in a rival government (Normally, any person can be appointed minister, pending getting elected within the next six months.)
According to the constitutional experts, the problem is on the exceptions of the law as the part of the 10th schedule itself. The exception was provided in the law to protect the legislators from disqualification. The 10th Schedule states that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified. Also, when a political party splits, subject to no less than one-third of the members splitting, the law will not allow disqualification of the members.
The law observes that the Speaker or the Chairman of the concerned Houses can make decisions on defection matters. If the Chairman or the Speaker defects, the decisions shall be made by a member elected by the House.
WHY IT FAILED?
The law failed to stop defection because it is open to interpretations. The term "voluntarily giving up the membership of his party" is susceptible to interpretation because voluntarily giving up the membership is not the same as resigning from a party.
"It is high time that the law should be repealed because it has failed to protect the constitution from any crisis. I think the law is against the freedom to vote by the elected members and various aspects of this law are self-explanatory. Whenever a law curbs the right of people it fails," said former Secretary-General of Lok Sabha, Subhash Kashyap. He also said that the politicians have found new ways to defect without attracting provisions of the law.
"The politicians of the country found various ways to bypass the law in various ways. Before the law came into place, one or two members used to defect but now to bypass the law and face disqualification, a large number of defection takes place and they defect together so that the law cannot be imposed," Kashyap told MillenniumPost.
Goa & Karnataka
In Goa's scenario, the MLAs joined the Bharatiya Janata Party (BJP) voluntarily according to the CM and Deputy Speaker. They are unlikely to be disqualified as members of the Goa Assembly due to a two-third (10 out of 15) shift.
The BJP, which has 17 members in Goa Assembly, will now have 27 members after this defection, retaining its status as the single largest party and giving it a full majority without support.
In Karnataka, 13 MLAs of the ruling parties (Cong-JDS) resigned as members only to bring down the numbers and expose the government to a trust vote, which serves as a backdoor.
Chief Minister HD Kumaraswamy and his Janata Dal(Secular)-Congress alliance blamed BJP for it. BJP, on the other hand, has accused the ruling parties of getting the Speaker to refuse to accept the resignation of the rebel MLAs and fighting the cause of the government. The Congress accuses the governor of acting like an agent of the BJP.
Six months ahead the current crisis, a similar scenario occurred. MLAs from the two partners tried to defect to BJP. While four MLAs emerged as rebels, only one eventually resigned from the Congress as others were believed to be afraid of the legal consequences. Congress MLA from Chincholi, Umesh Jadhav, joined BJP and defeated Congress' heavyweight canditate, Mallikarjun Kharge, in the Gulbarga seat in the Lok Sabha polls.
Earlier this week, after the trust vote on Tuesday, the Congress-JDS government failed and the BJP government was formed.
"It is high time that the law should be repealed and if not, then the law should be made stringent. If an MLA resigns he/she should be disqualified immediately without any exception, said Subhash Kashyap.
Meanwhile, amongst all these controversies, the Supreme Court had to intervene in the matter of Karnataka and directed that the MLAs who resigned should not be forced to be present in the house while the trust vote happens. However, the court did say that the speaker's decision is the ultimate.
On Tuesday, trust vote took place at the Assembly and the ruling coalition lost, therefore, the government fell. Days after the trust vote the speaker disqualified three rebel MLAs. On Friday evening, BJP leader B S Yeddyurappa was sworn in as the Chief Minister of Karnataka.
"The Supreme Court order that a legislator cannot even be compelled to attend the Assembly effectively emasculates the anti-defection Act. In fact, the Act is predicated on the Legislative Party having an enforceable whip. Once the whip is issued, the legislature party is bound to obey it on pain of being disqualified from his office as a legislator.
Undoubtedly, this was an interim order but it will also become a law that is binding upon the High Courts in India. I foresee a time when various High Courts while addressing defections in future, will cite this order," senior Supreme Court lawyer, Sanjay Hegde, wrote in an article.
Amid all the defections and politics of power, the constitution and democracy have become more vulnerable with these recent developments. It is time to reevaluate if a law can ensure political ethics or morality. Lastly, the voters stay at the receiving end, they vote for the people they want but then something else is imposed on them.
Political changes will keep happening and we can not escape it. In this context, there is an urgent need to ponder upon the politics of defection not only because it creates a constitutional crisis but also because it makes democracy more vulnerable.